Nevada Supreme Court, 2013

Sylvestri (Jeraldine) v. State

Nevada Supreme Court · Decided March 14, 2013

Opinion

agree. Ordering Sylvestri to pay $750 a month while at the same time ordering that she spend twenty-four of those months in jail is irrational. 1 See Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005) ("An abuse of discretion occurs if the district court's decision is arbitrary or capricious or if it exceeds the bounds of law or reason." (internal quotations omitted)). This condition of probation must be reversed.

Sylvestri also contends that the district court abused its discretion by requiring that she complete 40 hours of community service per month as a condition of probation. We agree that this condition violates NRS 176.087(4)(a) because it fails to fix the total period of community service. 2 We also agree that the district court abused its discretion by imposing this condition without making an exception for the period of time Sylvestri was ordered to be incarcerated. This condition of probation must also be reversed. 3

1 We note that during the sentencing hearing, the district court agreed with the victim's attorney that no restitution payments would be made during the term of incarceration. It therefore appears that the district court may have intended, but inadvertently omitted, to include language in this condition of probation relieving Sylvestri of her obligation to pay restitution while incarcerated. 2 Because the district court failed to fix the total period of community service imposed, we need not reach Sylvestri's contention that the district court erred by imposing a period exceeding the statutory maximum. See NRS 176.087(4)(a)(3). 3 We conclude that Sylvestri is estopped from challenging the conditions of her probation that require her to pay $20,000 in restitution on the date of sentencing and stipulate to and authorize the entry of a civil judgment against her. See Carter v. State, 121 Nev. 759, 769, 121 P.3d 592, 599 (2005) ("A party who participates in an alleged error is estopped from raising any objection on appeal."). And Sylvestri's remaining continued on next page... SUPREME COURT

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NINZIE1,;(aftE Having considered Sylvestri's contentions and concluded that she is only entitled to the relief stated herein, we

ORDER the judgment of conviction AFFIRMED IN PART AND REVERSED IN PART AND REMAND this matter to the district court for proceedings consistent with this order.

Gibbons .1D.CD'U-61 ' J Douglas Saitta cc: Hon. Kimberly A. Wanker, District Judge

Paul E. Quade Attorney General/Carson City Mineral County District Attorney Mineral County Clerk

...continued challenges to the conditions of her probation lack merit. See NRS 176A.400(1) (allowing the district court to "fix the terms and conditions" of probation, including those identified in the statute, "without limitation"); NRS 176A.400(1)(c)(4) (allowing the district court to impose conditions of probation "[p]rohibiting the probationer from engaging in specific conduct that may be harmful to the probationer's own health, safety or welfare"); NRS 176A.500(2)-(3) (district court may issue an arrest warrant or probation officer may arrest a probationer who has violated the conditions of probation); NRS 209.432 (defining an "offender" as used in NRS 209. 4465); Haney v. State, 124 Nev. 408, 414 n.21, 185 P.3d 350, 354 n.21 (2008); Creps v. State, 94 Nev. 351, 360, 581 P.2d 842, 848 (1978) (legislative intent is the primary focus of an inquiry into the propriety of a condition of probation).

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